Frank B. Trujillo, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionJun 12, 2003
01A24065_r (E.E.O.C. Jun. 12, 2003)

01A24065_r

06-12-2003

Frank B. Trujillo, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Frank B. Trujillo, Jr. v. United States Postal Service

01A24065

June 12, 2003

.

Frank B. Trujillo, Jr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 01A24065

Agency No. 4F-956-0118-00

Hearing No. 370-A1-X2338

DECISION

Complainant timely initiated an appeal from the agency's final

order concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the following reasons, the Commission affirms the agency's final

order.

The record reveals that complainant, a part-time Flexible Clerk at the

agency's Chico, California facility, filed a formal EEO complaint on

September 7, 2000, alleging that the agency discriminated against him

on the basis of disability (cluster headaches, depression, and chemical

dependency) and in reprisal for prior EEO activity when on May 26, 2000,

the agency terminated his employment.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination. The agency's final order implemented the AJ's decision.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

The AJ found that complainant was a qualified individual with a disability

with respect to his depression and cluster headaches. However, the

AJ found that complainant failed to prove that his chemical dependency

was covered under the Rehabilitation Act by demonstrating that he had

successfully completed a drug rehabilitation program.<1> Nevertheless,

for purposes of further analysis, we assume, arguendo, and without

finding, that complainant established that he is a qualified individual

with a disability for all of his conditions under the Rehabilitation

Act.<2>

Here, the record reflects that the agency articulated legitimate,

non-discriminatory reasons for terminating complainant. Both

complainant's supervisor and the Postmaster testified that their decision

to terminate complainant was based upon complainant's pattern of failing

to report to work without giving prior notification to management.

The record contains documentation reflecting that the agency issued

complainant a letter of warning and two suspensions for absences in 1999,

yet complainant thereafter amassed numerous additional Absent without

Leave charges from November 1999 through March 2000. We note that

complainant's supervisor afforded complainant the opportunity to explain

his numerous absences and tardiness prior to removing him, but complainant

testified that he could not recall the reason for some of the absences nor

confirm that he contacted his management prior to the absences. Finally,

we find that complainant failed to present evidence demonstrating that

the agency's proffered reasons were pretexts for unlawful discrimination.

Complainant contends that he should not have been removed from his

position because his December 1999 absences were the result of his

disabilities, but he adduced no reliable evidence that his supervisor

had notice of his chemical dependancy or cluster headaches. In fact,

complainant testified that because he did not inform his supervisor or

the Postmaster of his chemical dependency until after his termination

because he thought it was a private matter. Without notice of his

chemical dependency and cluster headaches, the agency was not required

to provide a reasonable accommodation. Complainant maintains that his

request for leave under the Family Medical Leave Act (FMLA) for depression

in February 2000 constitutes a request for reasonable accommodation.

However, the large majority of the absences cited by the agency as

the bases for complainant's termination occurred before complainant's

FMLA request. Since reasonable accommodation is always prospective,

an employer is not required to excuse past misconduct even if it is

the result of the individual's disability. See Enforcement Guidance on

Reasonable Accommodation and Undue Hardship Under the Americans with

Disabilities Act, No. 915.002, at Question 36 (rev. Oct. 17, 2002)

(�Guidance�).

Moreover, regular attendance is a uniformly applied conduct rule,

that is job-related and consistent with business necessity. An

employer may discipline an employee with a disability for engaging in

such misconduct if it would impose the same discipline on an employee

without a disability. See Guidance at Questions 35-36. Accordingly,

we conclude that the agency was not required to excuse the misconduct

of months of absences without leave or to rescind the discharge.

Therefore, after a careful review of the record, the Commission finds that

complainant failed to present evidence that any of his termination was in

retaliation for his prior EEO activity or was motivated by discriminatory

animus toward his disabilities. We also find that the agency did not

deny complainant reasonable accommodation. As such, we discern no basis

to disturb the AJ's decision. Accordingly, after a careful review of

the record, including complainant's contentions on appeal, the agency's

response, and arguments and evidence not specifically addressed in this

decision, we affirm the agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__June 12, 2003________________

Date

1Although the illegal use of drugs are excluded from protection under

the Rehabilitation Act, persons who have successfully completed a drug

rehabilitation program or otherwise been rehabilitated successfully

and are no longer engaged in illegal drug use are covered by its

provisions. See C.F.R. 1630.3; 29 U.S.C. 706(8)(C)(ii), 791(g).

2 A "qualified individual with a disability" is an �individual with a

disability� who satisfies the requisite skill, experience, education and

other job related requirements of the employment position such individual

holds or desires, and who, with or without reasonable accommodation, can

perform the essential functions of the position. 29 C.F.R. � 1630.2(m).